State of Wisconsin
Labor and Industry Review Commission
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Fair Employment Decision[1] |
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Complainant |
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Respondent |
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Dated and Mailed: |
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ERD Case No. CR201403276 |
July 31, 2017 |
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EEOC Case No. 26G201500125C |
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butleje_err:164 |
The decision of the administrative law judge is modified and, as modified, is affirmed. Accordingly, the complainant’s complaint is dismissed.
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By the Commission: |
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Laurie R. McCallum, Chairperson
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David B. Falstad, Commissioner |
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Procedural Posture
This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon his age, sex, race and/or color, in violation of the Wisconsin Fair Employment Act. An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Although the commission agrees with the result reached by the administrative law judge, it has rewritten the administrative law judge’s decision to more accurately reflect the factual and legal bases for its decision. Based on its review, the commission makes the following:
Findings of Fact
1. The respondent, UW-Madison (hereinafter “respondent”), is an institution of higher education located in Madison, Wisconsin.
2. The complainant, Jerry Butler, is a black male, who identifies his race as African-American. The complainant’s date of birth is November 10, 1947. During the time period at issue he was 66 years old.
3. On April 9, 2014, the respondent began recruitment for a faculty associate position within the Art Department.[2] The individual selected would be responsible for all aspects of the undergraduate art education teacher certification program, and for recruiting students into the art education program and advising students in the program. The successful candidate would also be expected to work with the School of Education on curriculum, certification and other areas of collaboration, and to coordinate statewide outreach efforts.
4. The PVL posted by the respondent indicated that an MA degree was required, with an MFA or Ph.D. preferred, and that the candidate:
must be an accomplished Art Educator with at least 3 years of teaching experience in PK-12 classrooms or equivalent settings. Interest and experience with community-based outreach and education a plus.
The PVL stated that a complete application must include:
letter of application, teaching philosophy, CV, contact information for three references that would be willing to provide a letter on request, degree transcripts, 8-10 images of applicant’s individual creative work (as applicable), 20 images of student work and examples of applicant’s art education course syllabi.
The PVL also indicated that “additional letters of reference that can address the applicant’s teaching ability in PK-12 classrooms and/or university settings are desirable.”
5. The complainant submitted a 3-page letter of application, expressing his interest in joining the Art Education faculty. The complainant’s letter generally described his present and past work experience in narrative form. The complainant also attached a Curriculum Vitae (CV), which listed his education (including a BS in art education, an MFA, and a Ph.D in curriculum design), publications and exhibitions, along with a description of his professional accomplishments, but which did not include a work history section listing his present and past employers, description of the job, and dates of employment for each position. The complainant’s application included a list of references who could be contacted, as well as a variety of materials including, among other things, a letter of support for the complainant’s promotion and tenure written by an art professor at Central Connecticut State University, an in-class peer teaching evaluation for a course called Technology in Art Education, and a peer observation for a class entitled Fine Arts Across the Curriculum. He did not supply any letters of reference specifically addressing his ability to teach in a PK-12 classroom.
6. A total of 12 individuals submitted applications for the position.
7. A search committee consisting of Barbara Gerloff, the Assistant Dean of the School of Education, Jim Escalante, the Associate Dean for faculty in the Art Department, and Gail Simpson, a professor in the art department of the School of Education, reviewed the applications and decided which individuals to interview.
8. Ms. Simpson and Mr. Escalante were aware of the complainant’s sex, race and color based upon previous encounters with the complainant, who had attended the UW-Madison as a student. Ms. Gerloff was unaware of the complainant’s race or color, but could determine based upon his name that the complainant was probably a male. All three members of the committee were able to surmise the complainant’s approximate age based upon their prior contacts and the fact that the complainant’s application indicated that he began attending Jackson State University in 1965.
9. In an e-mail to Ms. Simpson[3] dated May 27, 2014, Mr. Escalante indicated that he had reviewed the applications and that the only candidate who excited him was Felice Amato, one of the respondent’s current graduate students. Mr. Escalante noted that he saw that some of the other applicants had connections to the respondent’s program. He specified that he had met and had some connections with the complainant and thought that Ms. Simpson may have met him as well.
10. Later that day Mr. Escalante sent a second e-mail indicating that his top two candidates were Felice Amato and Andrea Miller, and that a third candidate, Kim Walter, “shows possibilities.” Escalante noted that he liked Walter’s use of web links and liked what she wrote, but was concerned that her art work was not sufficiently developed. With respect to the complainant, Mr. Escalante noted, “Jerry Butler has a long list of accomplishments. It seems odd that he did not list any previous employer on his cv. This needs some clarification. I checked the others. Those that are viable candidates did list them.” Mr. Escalante also noted that Quynh Nguyen was the candidate with the most experience, but that Mr. Nguyen’s letter indicated he wanted to do research.
11. The following day Ms. Simpson sent an e-mail to Mr. Escalante stating that Felice Amato, Andrea Miller and Kim Walter were on her list, as well as Melissa Winker, Mary Hoefferle, and Gary Johnson. Simpson stated that she was looking for a balance of K-12 teaching experience, an art practice, and scholarship or research activity. She indicated that she liked Winker’s graphic design background, Johnson’s research into mentoring African-American students, and the fact that Hoefferle’s artistic practice was community murals. Simpson further stated that she thought Hoefferle would make a good transition from UW-Oshkosh. Simpson made no reference to the complainant or any of the other candidates whom she was not recommending for an interview. Mr. Escalante responded that he agreed with Ms. Simpson’s list, and noted that all of the candidates listed had good K-12 experience.
12. On May 28, 2014, Ms. Simpson, Mr. Escalante, and Ms. Gerloff met and agreed on six candidates to interview: Amato, Miller, Walter, Winker, Hoefferle, and Johnson.
13. The search committee interviewed the six individuals whom they viewed as the strongest candidates for the job. The decision regarding which candidates to interview was not based upon age, sex, color or race.
14. After conducting a preliminary telephone interview with the six candidates listed above, the committee narrowed the list to three finalists: Hoefferle, Amato and Walters. Hoefferle was ultimately offered and accepted the job.[4] Hoefferle was chosen for the job because the respondent concluded she was the strongest candidate. Hoefferle had a M.Ed. and a Ph.D. in art education, six years of K-12 art education experience, ten years teaching art at the university level, and was already working in the UW system and recruiting students to a UW program. In addition, Hoefferle understood the certification process for teachers, including a new exit test called the Educational Teacher Performance Assessment (EdTPA), and was knowledgeable about best practices to help students prepare to enter the Wisconsin job market.
15. Neither age, sex, race nor color played any role in the hiring decision.
1. The complainant failed to establish probable cause to believe that the respondent discriminated against him based upon his age, sex, race or color, within the meaning of the Wisconsin Fair Employment Act.
Memorandum Opinion
The complainant clearly has some impressive qualifications and experience in the field of art instruction. However, there were a total of twelve applicants for the job at issue, many of whom were extremely well qualified, and the complainant did not establish that his qualifications were superior to those candidates whom the respondent selected for an interview or that he was among the strongest candidates for the job. Further, the complainant’s application suffered from a failure to clearly communicate his qualifications and experience to the respondent and to demonstrate that he had experience that was directly relevant to the job. Credible witness testimony indicated that the fact the complainant’s CV contained no comprehensive accounting of his prior work history, with specific names of employers, a description of his job duties, and the dates on which he held each job, made his application materials difficult to evaluate and created an unfavorable impression on the members of the search committee, who felt they were left to puzzle together qualifications that were mentioned in the complainant’s cover letter but which could not be found in his resume. By contrast, other applicants were very clear as to what their accomplishments and work history were, which enabled them to stand out and left a positive impression on the members of the search committee. In addition, committee members also noted that some of the extra materials submitted by the complainant did not seem to pertain to the job at issue (such as letters in support of his bid for tenure), and that it appeared from his application materials that he was confused about the nature of the position and did not understand that the respondent was hiring academic staff and not a tenure track assistant professor.
The record contains nothing to suggest that the search committee took the complainant’s protected status into consideration when deciding who would advance in the interview process, and there is no reason to believe that he would have been granted an interview had he been younger, female, or of a different race or color. Because the complainant failed to demonstrate that the respondent’s explanation for its actions--that it interviewed the candidates whom it believed had the best credentials for the job and ultimately hired the most qualified among them--was a pretext for discrimination, the dismissal of his complaint is affirmed.
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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.
[2] The Position Vacancy Listing (PVL) included a working title of “Faculty Associate” and indicated that the employee class was “Academic Staff;” the job was not a tenure track faculty position.
[3] The record indicates that Mr. Escalante’s e-mail was sent only to Ms. Simpson because Mr. Escalante was able to have in-person conversations with Ms. Gerloff, who was present in the building.
[4] Hoefferle is female, and was 41 years old at the time the job offer was extended. The record contains no information regarding her race or color. Although in her decision the administrative law judge noted that Hoefferle was also a member of the protected age group, that fact does not constitute a defense to the complainant’s allegation of age discrimination in light of the significant age difference between Hoefferle and the complainant.